(delivering the judgment of the court): The appellant was apprehended at the Bayan Lepas Airport, Penang with seven packets of heroin in his left boot and seven packets of heroin in his right boot and another four packets of heroin in his underwear. He was tried in the High Court, Penang and was convicted under section 39(B)(2) of the Dangerous Drugs Act 1952. The appellant did not give evidence in the witness box but instead gave a statement from the dock and relied on the evidence of two medical doctors (Dr. Colin Brewer (DW 2) and Dr. Mahadevan (DW 3)) on the state of mind of the appellant. Evidence in rebuttal was brought by the prosecution in the form of one Dr. M. Subramaniam (PW 12).

The learned judge noted that the two defence medical consultants had a two-hour interview with the appellant in the Penang Prison after which they prepared a general report. The gist of their findings was that the appellant suffered from a serious personality disorder secondary to organic brain disease. The learned judge, on the other hand, said that he was satisfied that Dr. Subramaniam had thoroughly examined and observed the appellant in the Hospital Bahagia for a period of three months and his examination consisted of personal interviews and full psychiatric examination to search for any evidence of mental disorder as well as any abnormalities in the accused's personality structure. Dr. Subramaniam came to the conclusion that the appellant did not suffer from any brain injury but only from a personality disorder.

The learned judge concluded that there was no real basis for the defence witnesses to come to their conclusion that he suffered from a serious personality disorder secondary to organic brain disease.

At the conclusion of the trial, counsel for the appellant, Mr. Rajasingam, submitted that the defence did not challenge the evidence of the prosecution but stated that section 94 of the Penal Code applied in this case and that the appellant was under duress from the appellant's accomplices.

It is the crux of the appellant's submission that the appellant committed no offence as he was compelled to do it by threats, in other words, under duress. Section 94 of the law clearly states that except for murder and offences included in Chapter VI punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence.

The law clearly envisages that to constitute threats causing the apprehension that instant death to that person will be the consequence, there must be reasonable fear. Persons who do criminal acts from fear of anything but instant death do them at their peril.

Mr. Rajasingam, counsel for the appellant, submitted that the learned trial judge erred in law when he misdirected himself in his reading of section 94. The learned judge stated in his judgment:

"It is clear to me that to invoke section 94 there must be reasonable fear of instant death at the very time of the commission of the offence. If the offence is completed when all danger of instant death has been removed the person committing the offence is not protected under this section. Further, if the accused on his own accord placed himself in a situation by which he became subject to the threat of any person or persons, whatever threat may have been used towards him, the provisions of the section do not apply. In Tan Seng Ann v Public Prosecutor [1949] MLJ 87 Willan C.J. held that duress to be pleaded successfully must be imminent, extreme and persistent."

He went on to say that "each case of course depends on the facts and surrounding circumstances. In the present case, I could not find an iota of evidence to suggest that duress was present or continued when the accused was arrested by PW 1 at the Bayan Lepas Airport on 7 October 1982."

It may well be that that part of the judgmen